Today’s Edition: Mitch McConnell’s new career

June 9, 2021

          Mitch McConnell made a tentative foray into his new career as a stand-up comic at a press conference on Tuesday. McConnell opened his act with the statement that “The era of bipartisanship is over.” The assembled media stared blankly at McConnell, trying to understand if he was serious, thinking to themselves that “McConnell killed bipartisanship in 2009. Why is he talking about it today?” McConnell broke the tension with his follow-up line, “I just flew in from Las Vegas and boy, are my arms tired!”

          Mitch McConnell is a joke. A bad one. No person is more responsible for the death of bipartisanship in the Senate than McConnell. His cynical declaration followed the second use of the filibuster by Senate Republicans in a week—this time to block the Paycheck Fairness Act, which is designed to narrow the gender wage gap. See  The Hill, “Senate GOP blocks bill to combat gender pay gap.” McConnell’s declaration also followed Biden’s long-overdue decision to end the pointless negotiations with Senate Republicans over his infrastructure bill.  See NPR, “Biden Ends Infrastructure Talks With Republican Senators.” A separate track of negotiations is being led by Democratic Senators Joe Manchin and Kyrsten Sinema and Republican Bill Cassidy.

          Don’t hold your breath for Senator Manchin’s efforts to achieve a bipartisan agreement where Biden failed. Manchin is essentially shadow boxing, making a show of bipartisanship when he has no intention of achieving anything. Reporting from CNBC says that a conservative advocacy group backed by billionaire Charles Koch has been running an advertising campaign in West Virginia urging Manchin to reject Biden’s agenda, a strategy that appears to be working. See CNBC, “Joe Manchin is opposing big parts of Biden agenda as Koch network presses him.” Manchin is responding to the advertising campaign, rather than to the wishes of his constituents. Last week, Manchin said he would oppose the For the People Act, a bill that enjoys strong support in West Virginia. See End Citizens United, “New Polls: For the People Act (HR.1/S.1) Extremely Popular in West Virginia and Arizona.” (“In West Virginia, a traditionally red state, 76 percent of Republicans and 79 percent of Independents or unaffiliated voters support the For the People Act.”)

          It now appears possible that Republicans will be able to delay much of Biden’s agenda until the 2022 midterms. And though some Democrats and many commentators have already declared defeat in 2022, we should not. As I have written many times before, future elections will be decided by Independents—the largest voting bloc in the US. The hyper-partisan politics of the Big Lie are driving away persuadable voters in the center—who are critical to the success of Republicans.

          For example, readers will recall that Melanie Stansbury scored a 24-point margin of victory in the special election for New Mexico’s Congressional District No. 1. (The election was held June 1st to replace Deb Haaland, who is now Secretary of Interior.) An analysis of Stansbury’s winning margin is the subject of this article in Politico, “Why the GOP Just Got Blown Out in a Congressional Race.” Per Politico, one of the main reasons for Stansbury’s outsized victory is that the New Mexico State Republican Party has been taken over by proponents of the Big Lie. New Mexico is becoming increasingly urban, and independent voters are turned off by the conspiracy theories promoted by the GOP state party.

          The rejoinder to McConnell’s assertion that, “Bipartisanship is dead,” is Mark Twain’s quote that, “The report of my death was an exaggeration.” Yes, Republicans have indeed abandoned bipartisanship, but the American people have not. See, e.g., the poll linked above about the views of West Virginia voters on H.R.1. If we can expand the Democratic margin in the Senate and maintain control of the House, the filibuster will die, and the real work of democracy can resume. Don’t despair over McConnell’s obstructionism or cynicism. He is fooling no one. Convert your anger into action. We are close to victory. Now is not the time to flag. Instead, we should redouble our efforts.

Merrick Garland makes the wrong judgment call (again).

          We have experienced the second major disappointment of Merrick Garland’s tenure as Attorney General. The Justice Department decided to continue support of a lawsuit filed by Bill Barr that claims Trump can’t be sued for defamation over comments that crudely attacked the credibility of E. Jean Carroll, who accused Trump of rape. See The Hill, “Justice surprises, dismays with Trump defense.” In the Platonic world in which Merrick Garland apparently makes judgment calls, there is a principled basis for supporting the lawsuit filed by Bill Barr. In short, government officials are exempt from claims for civil wrongs (called “torts”) when they are acting in their official capacity. Barr claims that Trump’s defamatory comments directed at a woman who accused him of raping her nearly two decades before he became president were made as part of Trump’s official duties as president.

          Barr’s claim that Trump was acting in his official capacity was laughable when Barr first made the claim. It is no less laughable because Merrick Garland says that he is supporting the principle of immunity for other government officials. See Talking Points Memo, “Ex-Prosecutors Dismayed Biden DOJ Working To Defend Trump In Accuser’s Defamation Suit.” Moreover, Garland is ignoring the fact that Trump politicized the Justice Department in his efforts to obstruct justice. Garland could easily defend a decision to withdraw the government’s support of Trump without harming the protections afforded to government employees who are not defaming private citizens who accuse them of rape.

          In a meticulous opinion, Judge Lewis Kaplan of the Southern District of New York rejected Barr’s effort to protect Trump, ruling that, “President Trump's allegedly defamatory statements concerning Ms. Carroll would not have been within the scope of his employment.” Judge Kaplan’s full opinion is at the link in the prior sentence.          The matter is currently on appeal before the Second Circuit Court of Appeals, and may ultimately be decided by the Supreme Court. Let’s hope that Merrick Garland’s ill-advised decision does not prevent E. Jean Carroll from pursuing her defamation case against Trump.

News report on tax avoidance by billionaires in the US

A public advocacy group, Pro Publica, has obtained the private tax records of the wealthiest US taxpayers. Before discussing the report, I will pause for a moment on the issue of reporting on private information leaked to the press that taxpayers are required to provide to the government. The organization that obtained the information, Pro Publica, is a highly regarded public interest organization that has played an important role in uncovering corruption, fraud, and waste in government. But reporting on private financial information is different. Federal law makes it a criminal offense to disclose tax return information The wealthiest taxpayers are not accused of illegal conduct—only of manipulating unfair tax codes to their benefit. The problem is the tax codes, not the individuals, but it is the individual taxpayer information that has been published for all to see. Pro Publica addresses this issue in an editorial comment, “Why We Are Publishing the Tax Secrets of the .001%.” The answer provided by Pro Publica is that “We are disclosing the tax details of the richest Americans because we believe the public interest in an informed debate outweighs privacy considerations.”

          Regardless of whether you agree with Pro Publica’s rationale for publishing private taxpayer information, we should at least acknowledge that the issue is a serious one that deserves acknowledgment and consideration before delving into the debate (which Pro Publica has done, to its credit). Sadly, most politicians have sped past the issue and simply used the data as an argument for revising the tax code. The Biden administration has opened an investigation into the leak of the information.

          As summarized by the NYTimes, “Rich Americans Like Bezos, Musk, Buffett Avoided Income Tax.” Although the 25 wealthiest Americans paid a 15.8% rate on personal income taxes from 2014-18, Pro Publica calculates a “true” (effective) tax rate on their accumulated wealth at 3.4%. Either tax rate suggests that the 25 wealthiest US taxpayers are paying taxes at a rate far below middle-class taxpayers in the US. To say the least, that is unfair. At worst, the disparity represents billions of additional tax revenue lost each year—revenue that could be put to good use. The low tax rates also make it more difficult for Republicans to oppose Joe Biden’s proposals to increase the corporate and individual tax rates for the wealthiest Americans. Pro Publica intends to continue to publish analyses of the data that was thrown over its transom by an anonymous source. Republicans will likely attempt to avoid the discussion by claiming that Pro Publica’s information was obtained illegally and is unverified.

Concluding Thoughts.

Despite Mitch McConnell’s declaration that bipartisanship is dead, the Senate passed a bill with bipartisan support on Tuesday. See CNBC, “Senate passes $250 billion tech bill aimed to boost U.S. competition with China.” So, not all hope is lost! In another glimmer of hope, Ian Millhiser writes in Vox that “Much — but not all — of Justice Ginsburg’s women’s rights legacy is probably safe.” See Vox, “Supreme Court: Kavanaugh hands down surprisingly good news for feminism.” Millhiser draws his conclusion from the fact that Justice Kavanaugh joined in an opinion by Justice Sotomayor involving the all-male draft. Justice Sotomayor wrote that the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification.” In joining in that language, Justice Kavanaugh may be signaling that he will align with existing precedents established by Justice Ginsburg over her long career. Time will tell. But Millhiser makes a convincing argument.

          Both of the above developments run counter to my recent wave of pessimism about bipartisanship in Congress and the future jurisprudence of Justice Kavanaugh. I would be happy to be wrong on both fronts. But whether my pessimism turns out to be correct is not the point. On Tuesday, there were two positive developments that we should accept at face value. We must be realistic, but we must also be open to the possibility of surprise. Let’s accept the positive surprises for today—and begin anew tomorrow.  

          Happy birthday to my Managing Editor!

          Talk to you tomorrow!